Chapter 10 - Intention II : Mistake

Question 1

Explain a mistake.

Answer 1

Thabo must be aware of all the factors mentioned under intention. If she is unaware of any problem, it cannot be said that she intended to commit the crime. If such knowledge or awareness is absent, it means that there is a mistake or error on Thabo’s part. He imagined the facts to be different from what they, in fact, were; in other words, mistake excludes or nullifies their existence of intention

Question 2

Give an example relating to the act

Answer 2

Thabo is under the impression that he is fixing the engine of somebody’s motorcar that has developed problems, whereas what he is actually doing to the engine amounts to injury to it.

Question 3

Give an example relating to definitional elements

Answer 3

Thabo is hunting game at dusk. He sees a figure, which he takes to be a buck, and shoots at it. It turns out that he has killed a human being. He will not be guilty of murder, since he did not intend to kill a human being.

Question 4

Give an example relating to unlawfulness

Answer 4

Thabo thinks he is in a situation that warrants private defense because Mandla is threatening him with a revolver, but Mandla is merely joking and the revolver is, in fact, a toy.

Question 5

Does a mistake need to be reasonable?

Answer 5

Whether there really was a mistake that excluded intention is a question of fact. What must be determined is Thabo’s true state of mind and conception of the relevant events and circumstances. The question is not whether a reasonable person in Thabo’s position would have made a mistake. The test in respect of intention is subjective, and if we were to compare Thabo’s state of mind and view of the circumstances with those of a reasonable person in the same circumstances, we would be applying an objective test in respect of intention, which is not warranted.

Question 6

What is the nature of a mistake?

Answer 6

Not every wrong impression of facts qualifies as a mistake, thus offering Thabo a defence. A mistake can exclude intention only if it is a mistake concerning an element or requirement of the crime other than the culpability requirement itself.

Question 7

What is an error in objecto?

Answer 7

Error in objecto is not the description of a legal rule, it merely describes a certain kind of factual situation.

Question 8

Explain what is meant by mistake relating to the chain of causation

Answer 8

This type of mistake can only occur in the context of materially defined crimes, such as murder. Thabo believes that the result will be brought about in a certain manner; the result does ensue, but in a manner that differs from that foreseen by Thabo. Example, Thabo sets about killing Lebo by pushing her off a bridge into a river, expecting that she will drown, in fact, Lebo is killed because, in her fall, she hit on the pillars of the bridge.

Question 9

Explain what is meant by going astray (aberratio ictus) and give an example.

Answer 9

Aberratio ictus means going astray or missing of the blow. It is not a form of mistake. For example, intending to kill his enemy, Mandla, Thabo fires a shot at Mandla. The bullet strikes a round iron pole, ricochets, strikes, and strikes Themba, who is a few paces away, killing him.

Question 10

What are the two opposite approaches when dealing with aberratio ictus?

Answer 10

1. The transferred culpability approach
2. The concrete-figure approach

Question 11

Explain the transferred culpability approach

Answer 11

According to this approach, the question whether Thabo, in an aberratio ictus situation, had the intention to kill Themba should be answered as follows: Thabo wished to kill a person. Murder consists in the unlawful, intentional causing of the death of a person. Through his conduct, Thabo actually caused the death of a person. The fact that the actual victim of Thabo’s act proved to be somebody different from the particular person that Thabo wished to kill ought not to afford Thabo any defense. In the eyes of the law, Thabo intended to kill Themba, because Thabo’s intention to kill Mandla is transferred to his killing of Themba, even though Thabo might perhaps not even have foreseen that Themba might be struck by the blow.

Question 12

Explain the concrete figure approach

Answer 12

There is, how ever, an alternative approach to the matter. Those who support this approach argue as follows: We can accept that Thabo intended to kill Themba only if it can be proved that Thabo knew that his blow could strike Themba, or if he had foreseen that the blow might strike Themba and had reconciled himself to this possibility. In other words, we merely apply the ordinary principles relating to intention and, more particularly, dolus eventualis. If Thabo had not foreseen that, his blow might strike Themba, he lacked intention in respect of Themba’s death, and cannot be convicted of Themba’s murder. Thabo’s intention to kill Mandla cannot serve as a substitute for his intention to kill Themba.

Question 13

Which of the approaches is most preferable?

Answer 13

To a certain extent, support for thetransferred culability approach can be found in South African case law before 1950, but the weight of authority in the case law after this date supports the concrete-figure approach. In our opinion, the concrete-figure approach is also the most preferable because, since 1950 our courts have clearly adopted a subjective test to determine intention and because the transferred culpability approach amounts to an application of the versari docterine.

Question 14

What would the judgment be in a aberratio ictus situation?

Answer 14

As it was held in the Mtshiza case:

1. Thabo will normally always be guilty of attempted murder in respect of Mandla, that is, the person he wished to kill but did not kill.
2. If Thabo had foreseen that Themba would be struck and killed by the blow, and had reconciled himself to the possibility, he would have had dolus eventualis in respect of Themba death and is guilty of murder in respect of Themba.
3. If Thabo had not foreseen the possibility that his blow might strike and kill someone other than Mandla, or if he had foreseen such a possibility but had not reconciled himself to this possibility, he lacked dolus eventualis, and therefore cannot be found guilty of murder. However, this does not mean that Thabo is not guilty of any crime. Murder is not the only crime of which a person can be convicted if he causes another’s death. There is also the possibility of culpable homicide, which consists of unlawful negligence causing the death of another.
4. Only if it is established that both intention and negligence in respect of Themba’s death are absent on the part of Thabo will he be discharged on both a count of murder and one of culpable homicide.

Question 15

Give examples of factual situations of aberration ictus and error in obejecto

Answer 15

1. At dusk, Thabo shoots at a figure that he believes to be a horse named Thaburi, belonging to his neighbor (against whom he has a grudge). However, it appears that the figure was not Thaburi but another horse that belongs to her neighbour. Thabo is charged with malicious injury to property. This is a case if error in objecto, which affords Thabo no defense, the type of object that Thabo had in mind still falls within the description of the object as set out in the definitional elements.
2. At dusk, Thabo shoots at a figure that he believes to be his neighbor’s horse. The bullet misses the figure at which i was aimed and strikes a stable boy, Thando, who is standing in the darkness of the stable, somewhere behind the gorse. This is a case of aberratio ictus, because the bullet struck an object that was different from the one at which Thabo was aiming.

Question 16

Explain further the mistake relating to unlawfulness

Answer 16

Intention is said to be colored because, in our law, it always includes knowledge of unlawfulness. For this reason, intention in criminal law is often referred to as dolus; it is in fact an evil intention in the sense that Thabo directs his will towards a particular condition, knowing that such a condition is unlawful. Knowledge of unlawfulness can, for the sake of convenience, be divided into two subdivisions:

1. Thabo must know that his conduct is not covered by a ground f justification
2. Thabo must know that his conduct, in the circumstances in which he acts, is punishable by law as a crime.

Question 17

Explain the mistake relating to the ground of justification with an example

Answer 17

Thabo leaves his home in the evening to attend a function. When he returns late at night, he discovers that he has lost his keys. He decides to climb through an open window. Dipuo, his wife, is woken by a sound at the window. In the darkness, she sees a figure climbing through an open window. She believes the figure to be either a burglar or the man who recently raped several women in the neighbourhood. She shoots and kills the person, only to discover that it is her own husband that she has killed.

She has acted unlawfully because she cannot rely on private defence. Nevertheless, although she intended to kill a person, she will not be guilty of murder, because her intention (knowledge) did not extend to include the unlawfulness of the act. She thought that she was acting in private defense and, therefore, that she was acting lawfully. This is a case of putative private defence.

Question 18

Explain the mistake of law and give an example

Answer 18

In De Blom, X was charged, inter alia, with contravening a certain exchange-control regulation, according to which it was (at the time) a crime for a person travelling abroad to take jewelry worth more than R600 out of the country without prior permission. X’s defence with regard to this charge was that she did not know that such conduct constituted crime. The Appeal Court held that she had truly been ignorant of the relevant prohibition, upheld her defence of ignorance of the law, and set aside her conviction on the charge.